Saturday, January 18, 2014

NSA Spying and the Constitution: Why Obama does not get it

“[N]othing that I have learned since indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.” –Barack Obama, January 17, 2014

Barack Obama simply misses the point. In a windy speech seeking to address NSA spying on American citizens and foreign national, including our allies, Obama’s speech amounted to nothing more than “trust the government to do the right thing and protect your rights.” Such a sentiment completely misses the point about why we have a Constitution and in particular, the Fourth Amendment and the demands that searches be conducted only upon probable cause. Let’s first start with why the speech. The speech did not take place because the president was genuinely concerned or worried about the threat to individual liberties associated with the NSA intelligence gathering of our phone, e-mail and other metadata. Instead, the only reason the speech took place was because of the disclosures by Edward Snowden. Had those leaks not occurred it seems unlikely that the public would have known about the NSA spying. After all, the FISA Court that issues warrants to allow for activity like this is a secret court–no different than the old Star Chamber of the British monarchy. One can debate whether Snowden is a hero or a criminal but the truth is that he revealed something that the public would not have known about. As a result of Snowden we have come to learn of the extensive reach of the NSA in terms of spying on Americans and others across the world. We have also come to learn from a few scattered court decisions issued that the NSA has not always complied with court warrants, often exceeding them or acting way beyond their scope. All in the interest in keeping us safe and secure from terrorism. But Snowden’s disclosures have forced a public debate, pushing the president into the position of having to form a task force to reevaluate they NSA activity. His speech on January 17, was a response. To say the least, Obama was unapologetic if not defiant. He first appealed to fear and the threats to our security that terrorism poses and then he defended in a sanitized version how effective our intelligence gathering has been to protect us throughout history. The ends I guess justify the means. But then Obama outlines the changes to the spying program. Frankly, there were no real substantive changes. The NSA will continue gathering metadata and will not stop monitoring calls and e-mails. He does call for some minor changes in the FISA court but they are not really clear what they will be. The major change is to say that the NSA cannot store the metadata anymore. Someone else will? But whom? Private vendors, like the one who Snowden worked for? Or companies like Target and Neiman Marcus? Whether in private or public hands the data still exists, is still being examined, and still constitutes spying. Moreover, Obama misses other fundamental issues. First, the issue is not whether the data has kept us safe and secure. The issue is about following the law. Rarely do I echo Rand Paul but he got it fundamentally right on CNN. If we suspect someone is doing something illegal then get a search warrant. The fourth Amendment requires particular suspicion to do searches–it does not allow for general fishing trips to look for information or to round up the usual suspects. It’s not hard to get search warrants–I did it when I worked in government. Morever, the security versus liberty dichotomy is a false one. When are only secure when our liberty is protected. Additionally, there is no evidence that this wholesale spying is efficient or produces real intelligence. It is overreach. Use real intelligence to focus on real suspects. Third, to capitulate on the Fourth Amendment means we have lost. Immediately after the events of 9/11 President Bush declared: “The object of terrorism is to try to force us to change our way of life, is to force us to retreat, is to force us to be what we're not. And that's--they're going to fail. They're simply going to fail.” Bush was correct in saying what he did even though he would fail to honor them. We fail as a country if we fail to respect our Constitution and Bill of Rights. We are the “shining city on the hill” because we respect and do not abuse rights. That is why stories about spying and torture are so bad. But finally, Obama misses it because in the end he speech comes down to no more than simply “trust the government to do the right thing.” Tell that to James Madison and the constitutional framers. Constitutions and bills of rights are written because we fundamentally should not always trust the government. Both are written to restrain the government. This is what Obama misses. I am not conspiracy theorist. It was a single shooter in Dallas in 1963. But what should be skeptical about the NSA spying. We are told they are not listening to our phone conversations or looking at the content of our e-mails? Should we believe them? Remember Nixon and the extent of his spying and his assertions that we should trust the president when it comes to national security? Obama missed a great opportunity. It was a chance to do what candidate Obama promised. It was a chance to also reign in private business data gathering. It was a change to move us to a new discussion about privacy and rights. But he failed to do that and instead simply missed the point about spying.

4 comments:

You have nailed it! As you probably know, the debate as to whether Snowden or any other whistleblower is a "hero" or "criminal" is a total red herring. It shouldn't be debated as it distracts from the issues. Humans are all mixed bags. The worst criminal has some good and the saints on earth have done some bad things. So it's not even good to call people "heros" but it's accurate to call some actions heroic. The actions of Snowden and others who sacrificed their lives or large segments of their lives for the greater good are heroic.

And speaking of "it's deja vu all over again" (as Yogi Berra said), more revelations from the Nixon tapes are coming out in a book that Nixon and his men, Chuck Colson, Halderman, Howard Hunt, etc. were actually plotting to kill the investigation journalist Jack Anderson who was a constant thorn in Nixon's side. Of course this was at same time, the NSA's "Minaret Program" was targeting MLK and other civil rights leaders, top editors and journalists, and even Senators Frank Church and Howard Baker. The NSA targeted 1650 Americans during last 6 years of the Vietnam War but all these 40 some years later, only one document revealing 7 of the 1650 targets has been declassified! That goes to your point about Obama being forced to give the speech only because the normally excessive beyond excessive secrecy was pierced in this case. At the end of the day excessive secrecy is the problem as even good people are apt to turn bad when they operate in secrecy. That and the massive revolving door corruption are to blame for US government unleashing itself from the Constitution and the rule of law.

One of the reasons the ends don't justify the means is that universal ethical principles and the laws as they now exist are the product of hundreds and thousands of years of real life experience. So the law has evolved in line with what works as a rule. Imagine that! The law works! It's actually pragmatic and generally effective! Maybe that's why torture was prohibited quite some time ago as a method of getting evidence and confessions?!

The other type of utilitarianism, however, "act utilitarianism" which is generally what people think of when they rationalize that "the end justifies the means" is where someone gets to concoct or make up a happy outcome based on using illegal or unethical means. Think about the happy ending where Jack Bauer finds the ticking time bomb to save New York City but the happy outcome is only achieved if he tortures somebody. That is a prime example of the disfavored "ends justify the means act utilitarianism." The reason it's disfavored by ethicists is that it's based on concocting an outcome, or a hypothetical because in reality the end is only achieved in a minority of situation or almost never. Jack Bauer endings are entirely fictional. For instance torture could "work" some small percentage of cases but it's never going to work as well as other approaches.

But a Dick Cheney will argue for such "1% solutions". (By the way, psychologists have found that a person's quickness to embrace this type of "ends justify the means utilitarianism" overlaps with a person's high score on the psychopathy scale.)

Oh I forgot I wanted to add this link to article about how abrogation of the 4th Amendment doesn't work! In fact the NSA is actually drowning in the trillions of pieces of info it has now vacuumed up which makes it harder for the intelligence agencies to spot the relevant information and thus to identify terrorist activity. See: http://online.wsj.com/news/articles/SB10001424052702304202204579252022823658850

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About Me

Professor in the political science department at Hamline University where he teaches classes in American politics, public policy and administration, and ethics.
Schultz holds an appointment at the University of Minnesota law school and teaches election law, state constitutional law, and professional responsibility.
He has authored/edited 30 books, 12 legal treatises, and more than 100 articles on topics including civil service reform, election law, eminent domain, constitutional law, public policy, legal and political theory, and the media and politics.
In addition to 25+ years teaching, he has worked in government as a director of code enforcement and for a community action agency as an economic and housing planner.